On 30 March 2021, judgment was handed down by the Court of Appeal in Re H-N, a case concerning four linked appeals from orders made in private law children proceedings. There were similar issues raised across the appeals, as each concerned allegations of domestic abuse.
This judgment comes at a time when there are a number of initiatives aimed at reviewing the court’s approach to allegations of domestic abuse. These include the Harm Report of June 2020 and the work of the Private Law Working Group in reviewing the Child Arrangements Programme. The Domestic Abuse Bill is also currently at the final stage of consideration before Parliament and will introduce some further reforms.
Although the judgment does not set any new legal precedent, the court took the opportunity to give some guidance about a number of significant issues in children proceedings where allegations of domestic abuse are made. In addition, the court emphasised that the various endeavours taking place on behalf of the Ministry of Justice and the Children and Family Court Advisory and Support Service (Cafcass), along with the work of legal and social work professions, are of vital importance in the context of improving the collective approach to issues of domestic abuse.
In setting the current scene, the court noted that approximately 40% of private law children cases involve allegations of domestic abuse. It highlighted the importance of a modern approach to domestic abuse being understood by judges and magistrates sitting in the Family Court. The court drew particular attention to the concept of coercive and controlling behaviour as central to the modern definition of domestic abuse and emphasised the need to consider whether there is a pattern of such behaviour.
Additionally, the court highlighted the need to consider ‘the impact that the domestic abuse has on both child and parent and determine what orders are to be made for the future protection and welfare of parent and child in light of these findings’ (paragraph 4). The effect of these orders could substantially restrict or even close down the continuing relationship between a parent and their child, making the efficacy of this process key.
In terms of the guidance given, the court primarily focused on Practice Direction 12J to the Family Procedure Rules 2010 (PD12J). PD12J is the practice direction that deals with allegations of domestic abuse in children cases and is the first port of call for judges dealing with cases in which domestic abuse is alleged. Importantly, the court made clear that PD12J remains fit for purpose, but that it is sometimes being interpreted and implemented incorrectly.
The court also gave specific guidance in relation to the following matters:
- Whether there should be a fact-finding hearing;
- the use of Scott Schedules;
- the approach to coercive and controlling behaviour;
- the relevance of criminal law concepts in family law.
Should there be a fact-finding hearing?
The court highlighted the following important considerations when determining if a fact-finding hearing is necessary:
- The nature of the allegations and whether it will be relevant in deciding whether to make a child arrangement order, and if so, in what terms;
- the court should have in mind the purpose of a fact-finding hearing, which is, in broad terms, to provide a basis of assessment of the risk and therefore the impact of the alleged abuse on the child or children;
- careful consideration must be given as to whether it is ‘necessary’ to have a fact-finding hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance of the issue before the court if the allegations are proved;
- whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance as set out in ‘The Road Ahead’.
Cafcass (who intervened in the appeal) proposed that it could undertake an enhanced safeguarding assessment, and, where appropriate, a meeting with the child before it is decided whether or not a fact-finding hearing is necessary. At present, Cafcass’s involvement prior to the determination of whether there should be a fact-finding hearing is often limited to safeguarding checks. The court considered Cafcass’s proposal, and concluded that it justified close consideration by those who are engaged in reviewing PD12J.
The use of Scott Schedules
As is typically the case in private law children proceedings where allegations of domestic abuse are raised, the court may direct the parties to prepare a Scott Schedule. The purpose of this is to list the allegations and set them out in a clear and concise manner.
In the appeal, it was argued almost unanimously that Scott Schedules could act as a ‘barrier to fairness and good process, rather than an aid’. Submissions were made as to the potential for Scott Schedules to inhibit an understanding of the wider context of harmful behaviour by focusing on isolated incidents as opposed to patterns of behaviour. Adding to that, the parties drew attention to the limits that are often imposed on the number of allegations that can be pursued, which may in turn produce a false or inaccurate portrayal of the relationship.
The court noted that ‘serious thought’ is needed to develop a new method of summarising and organising the matters due to be heard at a fact-finding hearing so the case that a respondent has to meet is clearly spelled out. However, the organisation and summary of the allegations should not distort the focus on patterns of behaviour. As such, the court considered that a move away from Scott Schedules is required, but no guidance was provided on what that move away could look like. It seems as though it will be for the Private Law Working Group together with The Harm Panel’s implementation group to consider this issue.
Approach to controlling and coercive behaviour
The court made clear that there must be an increased focus on controlling and coercive behaviour. At the same time, the court was mindful of the difficulties faced by judges in balancing the need for a proper implementation of PD12J with the damage caused to children by delay. More specifically, the court recognised the possible tension between evaluating the existence of a pattern of coercive and controlling behaviour, and potentially significantly increasing the length of proceedings.
The court also made clear that, where one or both of the parents assert a pattern of coercive and/or controlling behaviour, this should be the primary issue determined at a fact finding hearing. More specific factual allegations should be selected for trial for their potential probative relevance, unless the allegation is so serious that its determination is justified.
The relevance of criminal law concepts
There is a clear overlap of family and criminal law in the context of domestic abuse. However, in this appeal, the court did not deviate from the well-established principle that it would be wrong to muddle family law with criminal procedure and principles (Re R (Children) (Care Proceedings: Fact-finding Hearing)  EWCA Civ 198). The judgment makes clear that the Family Court should not immerse itself in the analysis of behaviour by applying criminal law concepts. A family judge needs to bear in mind that they are concerned with how the parties behaved and what they did, rather than establishing the strict criminal law definition of their behaviour.
While the guidance issued by the Court of Appeal was in many ways limited, the judgment makes clear that there will now be a shift away from focusing on individual incidents of domestic abuse, to looking at patterns of behaviour. Further changes to the way that the Family Court deals with these cases are afoot and family practitioners will need to be aware of the changing landscape around private law children cases involving allegations of domestic abuse. The Court of Appeal has sent a clear signal that a modern approach to domestic abuse is now required.
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Irene Karidas, Paralegal in our Family and Matrimonial team, contributed to this article.
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